Judgment call: 13 February 2012

Alexandra Bodnar
Alexandra Bodnar

Civil procedure

Determination of the principles upon which costs of a third party advisor could be claimed as part of own solicitor costs.

Costs determined

For the claimant
39 Essex Street’s Alexandra Bodnar; Prettys solicitor Carolyn Porter (Counsel appeared in main proceedings only)

For the defendant
Pallant Chambers’ Thomas Worthen; Bennett Griffin solicitor Mark Diamond

Revenue & Customs Commissioners v The GKN Group (2012) EWCA Civ 57. Court of Appeal (Civil Division). Ward LJ; Lewison LJ; Aikens LJ. 31 January 2012

The court should order an interim payment if satisfied that the conditions in CPR r.25.7(1)(c) were fulfilled unless there was a specific reason not to do so. The fact that the application for an interim payment was made in the context of a group litigation order and the applicant was not a test claimant did not amount to such reasons.

Appeal dismissed

For the appellant
Pump Court Tax Chambers’ Rupert Baldry QC and James Rivett instructed directly

For the respondent
One Essex Court’s David Cavender QC; Dorsey & Whitney partner Simon Whitehead

Company law

GHLM Trading Ltd v Maroo; Nita Anilkumari Maroo; Brocade International Ltd; Jose Paulo De Oliveiro Loureiro (2012) EWHC 61. Chancery Division. Newey J. 23 January 2012

The court considered various aspects of directors’ duties in the context of a company whose shareholding had been purchased via a cash injection from a third party. The court was largely required to make findings of fact, but there was particular emphasis on a director’s duty to disclose misconduct or wrongdoing, and the somewhat controversial decision in Item Software (UK) Ltd v Fassihi (2004) EWCA Civ 1244, (2004) BCC 994, (2005) CLY 524 was applied.

Judgment accordingly

For the claimant
4 Stone Buildings’ Paul Greenwood; Stewarts Law partner Fiona Stuart

For the defendants
Field Court Chambers’ Sami Rahman instructed directly


International Energy Group Ltd v Zurich Insurance Plc UK (2012) EWHC 69. Commercial Court. Cooke J. 24 January 2012

Where an employer’s liability for damages paid to an employee for exposure to asbestos, and his consequent death from mesothelioma, was governed by Guernsey law, to which the Compensation Act 2006 was inapplicable, the employer was entitled to an indemnity from its insurer corresponding only to the proportion of his employment covered by its policy of employers’ liability insurance. That was in accordance with the common law principles enunciated in Barker v Corus UK Ltd (2006) UKHL 20, (2006) 2 AC 572, (2006) CLY 2867, whose effect the Act had sought to reverse.

Judgment for defendant

For the claimant
Clerksroom barrister Antonio Bueno QC; Simpson & Marwick member Lex Dowie

For the defendant
4 New Square’s Jeremy Stuart-Smith QC and Jamie Smith; Buller Jeffries barrister Brenda Rennie

Personal injury

Delaney v Pickett and Tradewise Insurance Services Limited (2011) EWCA Civ 1532. 1 February 2012. Court of Appeal (Civil Division). Ward LJ; Tomlinson LJ; Richards LJ. 21 December 2011.

A car passenger could not claim under the Motor Insurers’ Bureau Agreement after he had been injured while in possession of cannabis with intent to supply, as the vehicle was being used in the course or furtherance of a crime within cl.6(1)(e)(iii) of the Agreement. Further, “crime” in that clause could not be read as being restricted to “serious crime”; that would leave the clause with little practical purpose.

Appeal allowed in part

For the appellant
Exchange Chambers’ Graham Wood QC; Pinto Potts solicitor Gerard Sanders

For the respondents
12 King’s Bench Walk’s William Featherby QC; Browne Jacobson solicitor Maurice Nicholls


Hawksford Trustees Jersey Ltd (Trustee of the Bald Eagle Trust) v Stella Global UK Ltd (2012) EWCA Civ 55. Court of Appeal (Civil Division). Rix LJ; Patten LJ; Etherton LJ. 1 February 2012

Where a trust had authorised a beneficiary to negotiate the terms of a share purchase agreement, and agreed to sell the shares on those terms, it was entitled to rely on the intention of the beneficiary in its claim for rectification of the agreement, as it had shared his intention as to the terms of the contract.

Appeal dismissed

For the appellant
11 Stone Buildings’ Alan Gourgey QC; DLA Piper legal director Catherine Radcliffe

For the respondent
4 New Square’s Roger Stewart QC and Ben Elkington; Clifford Chance partner Helen Carty


Coogan v News Group Newspapers Ltd & Glenn Mulcaire; Nicola Phillips v News Group Newspapers Ltd & Glenn Mulcaire (2012) EWCA Civ 48. Court of Appeal (Civil Division). Lord Judge LCJ; Maurice Kay LJ; Lord Neuberger MR. 1 February 2012.

The Senior Courts Act 1981 s.72 prevented a private investigator claiming privilege against self-incrimination in relation to information sought in proceedings arising from phone hacking, because the definition of “intellectual property” for the purposes of s.72 included confidential information which was technical or commercial in character and non-commercial confidential information.

Appeals dismissed

For the appellant
Doughty Street Chambers’ Gavin Millar QC and 5RB’s Alexandra Marzec; Payne Hicks Beach partner Sarah Webb

For the respondents
Hogarth Chambers’ Jeremy Reed; Schillings partner John Kelly (Coogan); Taylor Hampton solicitor-advocate Mark Lewis (Phillips)

For the interested party the Secretary of State for Business Innovation and Skills
Blacktone Chambers’ Thomas de la Mare instructed directly by the Treasury Solicitor